at the price of $3,500, and the purchase money was all paid in less than a year thereafter, two years before McDonald received any of the money now in dispute. He had received before this her share of the personal estate, amounting to $859, and may have appropriated this in part payment; but, whatever bearing that might have in explanation of her declarations, it is irrelevant for any other purpose, as the sole contention here is the legacy charged upon the land. On the undisputed facts the auditor was bound to find as he did,-that, no matter what declarations the wife may have made as to her money being in the property, no part of this legacy was paid by her husband for the purchase of it. The appellees, however, in view of the correctness of this finding, adopt this theory from the evidence: "That, although not a dollar of the wife's money was paid for the property, yet he promised to convey it to her, and her declarations show that she was willing to accept it; and by so doing, thas permitting him to retain her money, he was discharged as trustee, and became her personal debtor." We have no doubt, from a careful scrutiny of the evidence and the conduct of the parties, he repeatedly promised to convey her this property in satisfaction of her legacy; and we have just as little doubt that she expected him to do so. All the evidence is clearly reconcilable on this theory, and some of it is inconsistent with any other. But what significance is this fact entitled to? It was no more than a promise to pay the legatee with a house and lot, instead of money. The promise was not kept; it was broken. Violated promises cannot discharge a trustee from an official obligation. If he had repeatedly promised to pay her in money, and had repeatedly broken his promise, it would scarcely be argued that her forbearance during the time he was placating her with promises was such an agreement on her part as turned the trus tee into a common debtor, whom she must pow sue in another court. The promise to pay in land which he never conveyed, even though she were willing to accept it, did not discharge him from his official accountability. Nor did she do anything of which the sureties have any right to complain. She did not bring suit against her husband, yet the testimony of exceptants shows that otherwise she did about all a wife could do to get her legacy. She importuned him. This not seldom resulted in quarrels, with bitter reproaches on her part, and such unmanly retorts on his, as, if made to other than his wife, would have immediately resulted in a prompt legal accounting. The sureties knew her relation to their principal when they assumed their obligation. This obligation was that he would pay over the money received by him from the sale of the land to the legatees of John Kittel. It was their duty, as well as interest, to see that he faithfully executed the trust. There is no evidence they gave the matter any attention until the husband's ability to pay became doubtful. Then one of them, Mr. Pittman, testifies he several times urged the husband, it will be noted,

not to pay his wife, but to get a formal release from her. He says the husband made light of it, and said, "That will be all right." If the party wronged had so acted and spoken, instead of the wrongdoer, the surety might with some show of reason urge that he had been lured into in action. As it stands, his own testimony shows that as early as 1883-four years before the final accounting-he was conscious of his peril, and urged the defaulting principal to obtain a legal acquittance from the wife; not because she had been paid, but to save the surety from being called on for payment. However much we may regret that honest persons must suffer by the default of dishonest officials, we can find nothing in all this evidence which tends to relieve these sureties from their legal obligation. These bondsmen were not, in any true sense of the words, "innocent and confiding strangers," as termed by the learned judge of the court below. They are men who nominally appeared in the orphans' court with McDonald, and in substance said: "We know this man; trust him. He is honest, capable, and faithful. He will pay over to those entitled to it the money that comes into his hands. If he does not do so, we will." The court took them at their word, and put into his custody a dead man's estate, to be paid over to his legatees. This wife did not undertake to make good his default. These sureties did, and it is but simple justice to hold them to their bargain.

In computing and allowing interest, we think the facts do not warrant the conclusion of the auditor. From the earliest times, both in this state and England, before the enactment of any statute for the protection of the estates of married women, the rule in equity has been that the wife shall not charge her husband as debtor for arrears of income of her separate estate, in the absence of an agreement, express or implied, on his part to pay. The reason for the rule is to relieve from the necessity for accounts, which, in the ordinary conduct of domestic affairs, would be so difficult of determination. Hence, in settlements between husband and wife, in the absence of proof to the contrary, equity presumes that interest money on the wife's separate estate, which has been received by the husband, has been expended by him, with her consent, for the support of herself and family. The rule is directly the reverse of this as to the principal. Neither the statute of 1848 nor that of 1887 has worked any change in this particular. As the reason grows out of the duties incident to the domestic relation, so long as these remain unchanged, unless there be express statutory enactment, the presumption will continue. Mellinger v. Dausman, 45 Pa. St. 522; Hamill's Appeal, 88 Pa. St. 363. Also the very full opinion by our Brother McCollum in Hauer's Estate, 140 Pa. St. 420, 21 Atl. Rep. 445. Here there is no eridence of a promise by the husband to account to his wife for the interest. The evidence shows he received it from the devisees of the land, without objection_by her, before he was appointed trustee. The

presumption is, he continued to receive it from himself as trustee afterwards. He expended it, for the evidence shows he provided a liberal support for his wife and family. She, in all her complaints and indignant statements of her wrongs, never claimed any interest. She expected, and he doubtless promised her, the house, but she expected no more, as her due. At most the value of this was but little more than the legacy, and did not equal the share of personalty and the legacy together. The whole evidence shows that the interest was consumed in the support of herself and the family, with no intention on her part to make her husband a debtor for the amount of it. Therefore the decree of the orphans' court is reversed and set aside; the report of the auditor finding due and payable by Robert A. McDonald, trustee, to Loretta J. McDonald, legatee under the will of John Kittel, deceased, $2,987.78 principal, is confirmed absolutely. The allowance of interest on said principal from April 1, 1876, by the auditor, is stricken off, and his report in that particular is set aside. The record, with the decree thus reformed, is directed to be remitted to the orphans' court to be proceeded with according to law.

LACKAWANNA COUNTY v. COMMONWEALTH.

(Supreme Court of Pennsylvania. July 19, 1893.)

TAXATION-BOARD OF EQUALIZATION—ALLOWANCE OF CREDIT-RESETTLEMENT OF ACCOUNT. 1. The board of revenue commissioners, consisting of the auditor general, state treasurer, and secretary of the commonwealth, being empowered by Act April 29, 1844, (P. L. p. 486,) and by Act May 24, 1878, (P. L. p. 126,) merely to equalize the valuation of property taxable for state purposes, its resolution that a portion of the credit allowed a county on settlement for illegal taxes be transferred to another county is outside of its jurisdiction, and therefore the credit made in accordance therewith is not conclusive on the state, though it took no appeal.

2. Under Act April 8, 1869, (P. L. p. 19,) authorizing the auditor general, state treasurer, and attorney general to revise any settlement made by the auditor general, when it appears that it has been erroneously or illegally made, and to resettle it according to law, such officers were authorized to revise the account thus erroneously made, in favor of the county to whom the transfer of credit was unlawfully made, and properly did so, on its being decided by the supreme court that such transfer was illegal.

Appeal from court of common pleas, Dauphin county; John B. McPherson, Judge.

Lackawanna county appealed to the common pleas court from a resettlement by the auditor general, state treasurer, and attorney general of its account with the commonwealth for taxes. From a judgment affirming such action, it again appeals. Affirmed.

Lyman D. Gilbert, John H. Weiss, and Henry A. Knapp, for appellant. W. U. Hensel, Atty. Gen., and James A. Stranaban, Dep. Atty. Gen., for the Commonwealth.

the

THOMPSON, J. The appellant's contention, substantially, turns upon conclusiveness of the action of the board of revenue commissioners, unappealed from, in making a credit transfer from Luzerne county to Lackawanna county. In 1875, 1876, and 1877 this board increased the sum of the returns of personal property for taxation for the county of Luzerne. At the time of such increase, no appeal therefrom could be taken, but subsequently an act of assembly was passed, authorizing an appeal in such cases; and an additional increase having been made, and that county having appealed therefrom, it was decided that such increase was illegal. Accordingly, in 1879 and 1882, the commonwealth's officers made two credit settlements in favor of Luzerne county, one for $30,682.40, and one for $14,608.32. In 1878 Luzerne county was divided, and from a portion of it was con. stituted the county of Lackawanna. In 1883 the county of Lackawanna applied to the board of revenue commissioners to have awarded to it a proportionate share of the credit settlement allowed to Lu zerne. In pursuance of this request the board adopted a resolution that "it be divided 80 that Luzerne retain threefourths, and that one-fourth be given to Lackawanna." Thereupon the accounting officers made a transfer of $11,263.56 from Luzerne to Lackawanna. An appeal from this having been taken by Luzerne county, and this transfer having been held to be illegal, this credit was re stored to it.

The act of April 8, 1869, (P. L. p. 19,) authorizes the auditor general, state treas urer, and attorney general, “to revise any settlement made with any person or body politic by the auditor general, when it may appear from the accounts in his office, or from other information in his possession, that the same has been erroneously or illegally made, and to resettle the same according to law, and to credit or charge, as the case may be, the. amount resulting from such resettlement upon the current accounts of such person or body politic." Under this authority they revised the accounts of Luzerne, and, taking this credit from Lackawanna, restored it to that county. Unless this action of the board of revenue commissioners concluded them, they had a right to do so. By the act of April 29, 1844, (P. L. p. 486,) the board of revenue commissioners, constituted for the purpose of equalizing the assessments of taxes for the use of the commonwealth in the different counties, is directed "to proceed and ascertain the just and fair value of the property in the city of Philadelphia and the several counties of the commonwealth made taxable by law, and to make a record of the valuation." The purpose of its creation was to equalize the valuation of taxable property, and to establish a record of it. By the act of April 30, 1864, (P. L. p. 218,) the auditor general, state treasurer, and the secretary of the commonwealth were constituted the board, and by the act of May 24, 1878, (P. L. p. 126,) its powers were further defined. It is required “to proceed to ascertain and determine the

was in possession claiming the land as his own, not for the purpose of creating the relation of landlord and tenant, but under pretense by S. that it was for K.'s protection, and under promise that the former would perfect the latter's title by making a conveyance to him, it would not stop the running of the statute of limitations; and that, if K. and those claiming under him were in exclusive and continuous possession more than 21 years before the action was commenced, claiming it as their own, plaintiffs cannot recover.-Bidwell v. Evans, (Pa. Sup.) 26 A. 817, 156 Pa. St. 30.

Advice of Counsel. See "Malicious Prosecution," 5, 6.

Affidavit.

Accompanying chattel mortgage, see "Chattel Mortgages," 2.

Of defense, see "Pleading," 3-9.

Of juror to impeach verdict, see "New Trial." To obtain writ of ne exeat, see "Ne Exeat."

After-Acquired Property. When passes under will, see "Wills," 40.

Agency.

See "Principal and Agent."

Alcoholic Liquors.

See "Intoxicating Liquors."

Alienation.

Suspension of power of, see "Wills," 48.

Allowance.

To children of decedent, see "Executors and Administrators," 15, 16.

ALTERATION OF INSTRU-
MENTS.

Of will, see "Wills," 16, 17.
Effect.

1. Where a bond was executed in 1871, while defendant was under coverture, and was altered without her knowledge, she is not liable thereon, though she redelivered such bond after discoverture and after the erasures were made, where she did not know of the alterations.Nesbitt v. Turner, 26 A. 750, 155 Pa. St. 429. 32 W. N. C. 467.

Ratification.

2. The only evidence of execution and delivery of a bond of a cashier after an alteration was that on such date defendant was in the bank behind the counter with the cashier, that she did not sign it then, but acknowledged her signature, and that the cashier handed the bond to the witness, and requested him to give the date of his witnessing it. Held, that the evidence failed to show that defendant knew that any alterations had been made in the bond after she signed it, or that she intended to re-execute and redeliver it.-Nesbitt v. Turner, 26 A. 750, 155 Pa. St. 429, 32 W. N. C. 467.

not error to exclude such bond before proof that it was executed after the erasures were made.-Nesbitt v. Turner, 26 A. 750, 155 Pa. St. 429, 32 W. N. C. 467.

4. The fact that the attesting witness wrote the same date as was given in such altered date line, under his name, did not indicate a purpose to note alterations made before execution, and render such bond admissible without proof of due execution.-Nesbitt v. Turner, 26 A. 750, 155 Pa. St. 429, 32 W. N. C. 467. Amendment.

Of criminal complaint, see "Criminal Law," 28. Of pleadings, in equity, see "Equity," 22, 23. Of postea, see "Records."

Of statement of claim in insolvency proceedings, see "Insolvency,'

Of verdict, see "Trial," 17.

Ancient Instruments.

As evidence, see "Evidence," 19.

ANIMALS.

Injuries done by vicious dog.

1. While a man may keep a dog for the necessary defense of his house, garden, or fields, yet, if the dog be vicious, and the owner is previously aware of this viciousness, and permits the dog to run at large on the highway, and a person be bitten, the owner is liable. -State v. Remhoff, (N. J. Sup.) 26 A. 860.

2. In an action for personal injuries sustained by plaintiff from the bites of a dog owned by defendant, where there is evidence that plaintiff was lawfully on defendant's premises when he was bitten, and that the dog was a dangerous animal, whose character was known to defendant, an instruction to find for defendant on the evidence is properly refused.-Sylvester v. Maag, 26 A. 392, 155 Pa. St. 225.

See, also, "Certiorari;" "Exceptions, Bill of." Exceptions to instructions, see "Trial,” 13, 14. From city board, see "Municipal Corporations," 50.

In criminal case, see "Criminal Law," 24-28.
In election contest, effect, see "Elections and
Voters," 6.

In insolvency proceedings, amendment of state-
ment of claim, see "Insolvency," 2.
Jurisdiction, see "Courts.".
Waiver of defects in pleading, see "Pleading,"

14.

I. APPELLATE JURISDICTION.

Effect of former appeal by adverse party.

1. An appeal from a judgment non obstante veredicto, resulting in a reversal thereof, and an entry of judgment in plaintiff's favor on the verdict, is no bar to defendant's right to ap peal, assigning errors not reviewed on plain462, followed.-Gates v. Pennsylvania R. Co, tiff's appeal. Ormsby v. Ihmsen, 34 Pa. St. 26 A. 598, 154 Pa. St. 566, 32 W. N. C. 333. Appealable judgments and orders.

2. After defendant had appealed from a decree in plaintiff's favor, plaintiff filed a petition in the trial court, alleging that the defend